Family court removes solicitor’s appointment as QLR after conflict with criminal case role
A solicitor appointed by the family court to act as a qualified legal representative (QLR) has been discharged from the role after it emerged he was also representing the same client in related criminal proceedings. The decision, made in the case of K v P (Criminal solicitor as court-appointed QLR), raises important questions about potential conflicts of interest in cases where parallel family and criminal matters overlap.
The solicitor, identified in the judgment as Mr Fidler, had been appointed by the family court to cross-examine the mother on behalf of the father, who was a litigant in person in ongoing family proceedings. Under legislation introduced to protect vulnerable witnesses from direct questioning by alleged abusers, courts may appoint a QLR to conduct cross-examination on behalf of an unrepresented party.
However, in this case, the father was also facing criminal charges relating to domestic abuse, with the mother acting as the principal prosecution witness. The mother applied for an order to discharge Fidler’s appointment, arguing that his dual role could compromise her ability to give evidence freely and without distress.
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The application was considered by Sir Andrew McFarlane, President of the Family Division, who acknowledged that the allegations forming the basis of the criminal charges related to the adult relationship between the parents, while the family proceedings primarily concerned matters involving the children. Despite the separation of issues, he recognised that the overlap of parties and evidence created a heightened risk to the integrity of the process.
In his judgment, Sir Andrew emphasised that the court was not establishing a blanket prohibition against solicitors or barristers acting as both a QLR and a representative for the same party in related criminal cases. He described such an absolute rule as “disproportionate and unnecessary” in circumstances where the arrangement might otherwise be permissible and carefully managed.
Nevertheless, the court found that in this instance, continuing Fidler’s dual role would undermine the protective purpose of the legislation. “If a lawyer’s dual appointment has the effect of increasing the witness’s vulnerability, inhibiting their ability to give evidence, or diminishing its quality, then the aim of the legislative scheme is likely to be thwarted,” Sir Andrew said.
He noted that the primary purpose of the statutory framework — contained in Part 4B of the Matrimonial and Family Proceedings Act 1984 and Practice Direction 3AB of the Family Procedure Rules 2010 — is to safeguard the quality of evidence from vulnerable witnesses and to minimise their distress. Allowing a solicitor who is also acting for the same party in connected criminal proceedings to continue as a QLR, he said, would typically “cut right across” those objectives.
Sir Andrew continued: “Whilst each case will fall to be evaluated on its own facts, it is difficult to contemplate many cases where it will be proportionate to continue a lawyer’s appointment by the court as QLR where that lawyer also acts directly for the prohibited party in related criminal proceedings.” He therefore ordered that Mr Fidler’s appointment as the father’s QLR be terminated.
The judgment makes clear that the decision was not a reflection on Fidler’s conduct. Sir Andrew stressed that the solicitor had acted entirely appropriately throughout and had assisted the court by making submissions on the father’s behalf. The ruling, he said, was a matter of principle designed to uphold the fairness and integrity of proceedings involving vulnerable witnesses.
The case highlights the delicate balance courts must maintain between ensuring both parties receive fair representation and safeguarding vulnerable witnesses from distress or intimidation. It also underscores the judiciary’s continuing efforts to define the limits of legal representation in family proceedings where criminal allegations are also before the courts.